W.C. Nos. 4-316-373 4-316-493Industrial Claim Appeals Office.
July 23, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), which awarded temporary disability benefits and medical benefits. The respondents contend the ALJ erroneously determined that the claimant sustained a compensable injury while in travel status. The respondents further argue the ALJ committed several errors when ruling on evidentiary issues. We affirm.
The ALJ found that the employer dispatched the claimant from Colorado Springs to Palo Alto, California, in April 1996. During the week ending Friday, April 26, the claimant attended a training course. The employer arranged for the claimant to stay the weekend so that he could attend a conference the following week. The employer paid for the claimant’s lodging, meals, and a rental car.
The ALJ credited the claimant’s testimony that on the evening of April 26 he drove from Palo Alto to San Francisco to eat dinner on Fisherman’s Wharf. The trip took approximately forty-five minutes. Once the claimant reached San Francisco, he noticed a bicycle race which was beginning near Market Street. The claimant wished to watch the race, and parked his car in an area described by the ALJ as the “red light district of San Francisco.” After parking, the claimant browsed through some camera shops, entered the foyer of a burlesque theater, and took money out of an ATM machine. As the claimant was returning to his car to go to Fisherman’s Wharf, he was mugged and injured.
Under these circumstances, the ALJ concluded the claimant suffered a compensable injury arising out of and in the course of his employment. Specifically, the ALJ determined the claimant was in travel status, and that the claimant’s journey to Fisherman’s Wharf did not constitute a substantial “deviation” from the scope of employment. The ALJ explicitly rejected the respondents’ assertion that the distance between Palo Alto and Fisherman’s Wharf is so great that the claimant necessarily crossed the boundaries of his employment.
The ALJ also concluded that the claimant’s activities in the “red light district” were “reasonable and foreseeable,” and did not constitute “a personal errand” sufficient to remove him from the scope of employment. In any event, the ALJ held that at the time of the mugging the claimant had returned to the scope of his employment because any personal errand had ended and the claimant was “on his way to his car to go and eat.”
I.
On review, the respondents first contend that the claimant’s travel from Palo Alto to Fisherman’s Wharf to eat dinner was itself a substantial deviation from the scope of his employment. The respondents cite several decisions from other jurisdictions which emphasize the distance of travel and the availability of nearby restaurants when determining whether a particular injury is compensable. The respondents rely on evidence that the claimant could have eaten dinner in Palo Alto and avoided the forty-five minute journey to San Francisco. We are not persuaded.
As a general matter, injuries arising out of an activity which is incident to the employment are compensable. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Determination of this issue must be based on an examination of the facts in each particular case. Alpine Roofing Co. v. Dalton, 36 Colo. App. 315, 539 P.2d 487 (1975).
When an employer requires a claimant to travel away from the employer’s premises, the claimant is continuously within the course of employment, except when he makes a distinct departure on a personal errand. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). The law recognizes that traveling employees must engage in personal “ministrations,” including eating and sleeping. Consequently, injuries sustained by a traveling employee while engaged in or traveling to these activities are compensable. See Alexander Film Co. v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074 (1957)
The traveling employee may engage in a personal “deviation” from the scope of employment, and he is not covered for injuries sustained during the deviation. Silver Engineering Works, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973). The question of whether a deviation is substantial enough to remove the activity from the course of employment is factual in nature. Resolution of the issue depends on numerous factors including the length and distance of the deviation, the completeness of the deviation, and the extent to which the employer tolerates deviations. Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995); Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986).
Because the question of whether the claimant deviated from the scope of his employment is one of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. The substantial evidence test requires us to defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence, and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents’ argument notwithstanding, we cannot say as a matter of law that the claimant deviated from the scope of his employment by traveling from Palo Alto to San Francisco to eat dinner. The evidence supports the ALJ’s finding that, on a prior trip to San Francisco, the claimant’s “team leader” took the claimant from Palo Alto to San Francisco to eat dinner at Fisherman’s Wharf. The team leader testified that he was aware of no policy against such travel and that the employer paid for the dinner. The team leader also testified that he believed travel from Palo Alto to San Francisco to eat dinner was “routine.” (Tr. p. 50).
Under these circumstances, the record fully supports the ALJ’s determination that the claimant did not depart from the scope of employment by traveling to San Francisco. While the distance of travel and availability of restaurants in Palo Alto was relevant, we cannot say these factors are determinative in light of evidence that the employer sanctioned such travel in the past. Moreover, there is no specific distance of travel which automatically establishes that a claimant has deviated from employment. See Phillips Contracting, Inc. v. Hirst, supra
(156-mile round-trip not automatically out of the course of employment).
II.
The respondents next contend the claimant deviated from the scope of his employment by traveling to the “red light district” for his sole benefit. The respondents also assert that this deviation was so substantial the claimant could not return to the scope of employment.
We assume, arguendo, that the claimant engaged in a personal errand when he ventured into the “red light district” and browsed through the camera shops and entered the theater foyer. However, the ALJ determined that the deviation had ended at the time of the mugging because the claimant was returning to his car. We agree with this conclusion.
If a traveling employee deviates from the scope of employment by engaging in a personal errand, the deviation ends when the employee commences his return to the employer’s business. Pat’s Power Tongs, Inc. v. Miller, 172 Colo. 541, 474 P.2d 613 (1970). Moreover, the claimant’s return to employment begins at the moment the claimant begins the return to duty. Thus, in Continental Airlines v. Industrial Commission, 709 P.2d 953 (Colo.App. 1985), the court assumed the traveling claimant deviated from her employment when she went shopping. However, the claimant fell when leaving the store, and the court concluded she was entitled to workers’ compensation coverage because the injury “occurred after [the claimant] had finished shopping.”
Here, the claimant’s testimony supports the ALJ’s finding that the claimant was returning to the scope of employment at the time of the mugging because he was returning to his car. Although the evidence might have supported a finding that the claimant never intended to eat dinner, or that he was on a purely recreational deviation, the ALJ was not persuaded to draw such inferences. We may not substitute our judgment for that of the ALJ concerning the plausible inferences to be drawn from this record. Thus, the order must be upheld.
We have considered the respondents’ reliance on case law from other jurisdictions which holds that a deviation does not end until the employee returns to the normal “business route.” However, we consider these cases to be contrary to the law of Colorado as expressed in Continental Airlines v. Industrial Commission, supra. See also Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995).
III.
The respondents next contend the ALJ erred in excluding testimony and evidence. The overall thrust of the respondents’ argument is the ALJ frustrated their attempt to prove that the claimant’s trip to San Francisco was a personal deviation. We are not persuaded.
The respondents first argue the ALJ erred in refusing to admit a videotape of the area where the claimant was mugged. However, even if we were to assume that this ruling was erroneous, any error was harmless.
The ALJ received in evidence still photographs of the area where the claimant was mugged. Further, the ALJ received in evidence a road map of the San Francisco Bay area which includes references to the relevant landmarks. Under these circumstances, we conclude that admission of the videotape would have been cumulative, and the failure to admit this evidence did not prejudice any substantial right of the respondents. Section 8-43-210, C.R.S. 1997; § 8-43-310, C.R.S. 1997; C.R.E. 103(a). This is particularly true since the ALJ explicitly found the claimant was mugged in the “red light district” of San Francisco.
The respondents also assert the ALJ unreasonably narrowed the scope of cross-examination by refusing to let them question the claimant concerning his intentions “at the time of his wandering through the” area where he was mugged. However, we perceive no unreasonable restriction of cross-examination. In fact, the following exchange occurred:
“Q. (By Mr. Coate) At the time that you, knowingly, walked into a burlesque theater, and walked out of the foyer, what was in your mind to do next?
A. To return to my car and get dinner.”
Following this question, counsel for the respondent cross-examined the claimant concerning the direction he traveled to get back to his car. (Tr. Vol. II pp. 62-63).
Thus, the respondents questioned the claimant concerning his activities and intentions. Therefore, the respondents’ argument concerning the restriction of cross-examination is without merit See Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974) (scope of cross-examination generally committed to discretion of administrative hearing officer).
Neither do we perceive any error based on the ALJ’s handling of testimony that the claimant’s team leader may have expended more than the allowable limit for dinner. The team leader testified, without objection, that he had “heard” the limit was $35, and that he was “worried” because he spent “quite a bit above that.” However, this witness later testified that he did not explain the limitation to the claimant or advise him that any limit had been exceeded. (Tr. p. 84).
Under these circumstances, the respondents were allowed to introduce evidence of a possible “rule” violation by the claimant and the team leader. However, the ALJ was obviously unpersuaded by this evidence, and did not err in limiting further inquiry on the issue.
IT IS THEREFORE ORDERED the ALJ’s order dated July 24, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed July 23, 1998 to the following parties:
William Hollis, 825 Dancing Horse Drive, Colorado Springs, CO 80919
Sunsoft, Inc., 17150 Campus Dr., Ste. 200, Colorado Springs, CO 80920-9801
Sun Microsystems Computer Corp., 2550 Garcia Ave., #1-205, Mountain View, CA 94043-1109
Dawn Kaup, Kemper National Ins. Co., P.O. Box 5347, T.A., Denver, CO 80217-5347
Steve Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901 (For the Claimant)
Robert H. Coate, Esq., 1225 17th St., #2800, Denver, CO 80202 (For the Respondents)
By: _______________________